Friday, May 21, 2010

In the Interest of Equal Time: Rand Paul is No Barry Goldwater on Civil Rights

I do have something to say on this Rand Paul "revealing who he has always been" moment. But, why write now, when there are folks who are saying it better than I ever could?

And don't ever say that I don't think that Conservatives have something to offer. My enemy is stupidity and demagoguery wherever I may find it. Although I may not agree with every point, what follows is a reasoned, reflective engagement with the relationship between libertarianism and white supremacy that is well worth reading.

Rand Paul, son of legendary libertarian Congressman Ron Paul, for whom I worked in the 1970s, is now the official Republican nominee for the U.S. Senate from Kentucky. Perhaps unfortunately for him, he did not get a great deal of national press scrutiny during his primary campaign because he was an outsider that many in the national press corps thought could not win. Now that he has, they are making up for lost time. And Rand has accommodated them by repeatedly saying that he would not have voted for the Civil Rights Act of 1964 on libertarian grounds: private businesses should not be forced to serve African Americans if they so choose. Presumably, market pressure will eventually force them to be more accommodating. If it doesn't, then so be it, Rand believes.

Both Rand's supporters and critics point to Senator Barry Goldwater's principled opposition to the Civil Rights Act of 1964. However, according to Rick Perlstein's excellent book, Before the Storm: Barry Goldwater and the Unmaking of the American Consensus, Goldwater's opposition to the Civil Rights Act was based entirely on constitutional concerns. He had been told by both William Rehnquist, then a private attorney in Phoenix and later chief justice of the Supreme Court, and Robert Bork, then a professor of constitutional law at Yale, that it was unconstitutional. Bork even sent him a 75-page brief to that effect.

To be sure, the Rehnquist-Bork position was not a lame rationalization for racism. It was rooted in the fact that the Civil Rights Act of 1964 essentially replicated the Civil Rights Act of 1875, which was enacted by a Republican Congress over strenuous Democratic opposition. However, in 1883 the Supreme Court, then it its most libertarian phase, knocked down the 1875 act as well as many other Republican measures passed during Reconstruction designed to aid African Americans. The Court's philosophy in these cases led logically to Plessy v. Ferguson in 1896, which essentially gave constitutional protection to legal segregation enforced by state and local governments throughout the U.S.

As we know from history, the free market did not lead to a breakdown of segregation. Indeed, it got much worse, not just because it was enforced by law but because it was mandated by self-reinforcing societal pressure. Any store owner in the South who chose to serve blacks would certainly have lost far more business among whites than he gained. There is no reason to believe that this system wouldn't have perpetuated itself absent outside pressure for change.

In short, the libertarian philosophy of Rand Paul and the Supreme Court of the 1880s and 1890s gave us almost 100 years of segregation, white supremacy, lynchings, chain gangs, the KKK, and discrimination of African Americans for no other reason except their skin color. The gains made by the former slaves in the years after the Civil War were completely reversed once the Supreme Court effectively prevented the federal government from protecting them. Thus we have a perfect test of the libertarian philosophy and an indisputable conclusion: it didn't work. Freedom did not lead to a decline in racism; it only got worse.

Sadly, it took the Supreme Court more than 50 years after Plessy before it began to undo its mistake in Brown. This led to repeated efforts by the Eisenhower administration to enact civil rights legislation, which was opposed and gutted by Senate Democrats led by Lyndon Johnson. But by 1964, it was clear to Johnson that the tide had turned. The federal courts were moving to dismantle segregation to the extent they could, and the 1963 March on Washington, the murder and beating of civil rights demonstrators in the South and growing awareness of such atrocities changed the political climate and made the Civil Rights Act of 1964 possible--despite the filibuster against it by Senator Robert C. Byrd, who still serves in the Senate today.

If Rand Paul were saying that he agrees with the Goldwater-Rehnquist-Bork view that the Civil Rights Act of 1964 was unconstitutional and that the Supreme Court was wrong to subsequently find it constitutional, that would be an eccentric but defensible position. If he were saying that the Civil Rights Act were no longer necessary because of the great strides we have made as a country in eradicating racism, that would also be defensible. But Rand's position is that it was wrong in principle in 1964. There is no other way of interpreting this except as an endorsement of all the things the Civil Rights Act was designed to prohibit, as favoring the status quo throughout the South that would have led to a continuation of segregation and discrimination against African Americans at least for many more years. Undoubtedly, changing mores would have broken down some of this over time, but there is no reason to believe that it would have been quick or that vestiges wouldn't still remain today. Indeed, vestiges remain despite the Civil Rights Act.

I don't believe Rand is a racist; I think he is a fool who is suffering from the foolish consistency syndrome that affects all libertarians. They believe that freedom consists of one thing and one thing only--freedom from governmental constraint. Therefore, it is illogical to them that any increase in government power could ever expand freedom. Yet it is clear that African Americans were far from free in 1964 and that the Civil Rights Act greatly expanded their freedom while diminishing that of racists. To defend the rights of racists to discriminate is reprehensible and especially so when it is done by a major party nominee for the U.S. Senate. I believe that Rand should admit that he was wrong as quickly as possible.

Addendum

The gist of the libertarian critique of this post, both here and on other blogs, seems to be that since segregation was enforced by the states it proves nothing about whether a libertarian society would lead to a decline in racism. Fine. But it doesn't address the original point of this post, which relates to the Civil Rights Act of 1964. Without it, what force was going to make the Southern states drop their racist laws? As I point out, we had an almost 100 year test of whether market/social forces were capable of changing the laws and customs in the Southern states and eliminate segregation. It didn't happen and there's no reason to think it was necessarily ever going to happen if the Southern states were left to their own devices. I believe that federal intervention was critical to eliminate the racist laws of the Southern states that restricted the freedom of African Americans. Restricting the freedom of racists to discriminate seems to be to be a very small price to pay and that on balance CRA greatly expanded aggregate freedom.

8 comments:

I was saying something similar re: 1875/1964 and Paul's slimy sleight of hand re: public vs private, earlier http://bit.ly/cYDWWZ . Everyone's a "racist" now, especially those of us not cowed into silence about race. Ho hum.

The america the libertarian/states rights/tea party/SB1070 types want back is the right of states to hold back the blacks, disenfranchise their own women, quota out the immigrants, and shut out the disabled of every stripe. That's "freedom" to them.

When the federal government doesn't condone/enforce it, they run out and misspell some picket signs and wail about big government overreach tyrrany taking over, communism hitler auschwitz maoist, etc.

I've always had difficulties with libertarians primarily because they don't seem to recognize the necessity of the slow to counteract the opportunism of the impulsive. There is, in the sclerosis of law and parliamentary deliberation a calming effect on the passions of the people.

I think a great exemplar of this understanding of laws in one of my favorite films, A Man for All Seasons:

Roper:

"So now you'd give the devil the benefit of law?"

More:

"Yes. What would you do? Cut a great road through the law to get after the devil?"

Roper:

"I'd cut down every law in England to do that."

More:

"Oh, and when the last law was down, and the devil turned on you, where would you hide, Roper, all the laws being flat? This country is planted thick with laws from coast to coast, man's laws not God's, and if you cut them down -- and you're just the man to do it -- do you really think that you could stand upright in the winds that would blow then?

"Yes, I'd give the devil the benefit of the law, for my own safety's sake."

The libertarians seem to believe in a creative anarchy in anticipation of the invention of roads through the jungles of law.

Ron and Rand Paul are not libertarians, they are neo-confederates. If they were so concerned about freedom, they wouldn't be blathering about how the Civil War should never have been fought or about how the Civil Rights Act should never have been passed. This is dressed up racism.

@Thelonious "Ron and Rand Paul are not libertarians, they are neo-confederates."

Dunno about that. There is often a lot of overlap. To me, they are perfect representatives of the lewrockwell.com/League of the South types...antiwar because they're still smarting from having lost the Civil one, anti-state meaning anti-anything-with-the-word-federal in it, "Austrian economics", blah blah.

@Crap. Thank you so very much for acknowledging - for the first time I have seen in any liberal forum - the existence of State Party apparatus. Seriously. Almost never is it seen that there are factions within the GOP. There are factions in every *state* GOP as well.

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